Brexit: Avoiding the vortex

Andrew Duff
-
15 May 2017

The Brexit Election

Theresa May kicked off Britain’s formal election campaign by accusing the European Union of interfering. “Threats against Britain have been issued by European politicians and officials”, she said. “All of these acts have been deliberately timed to affect the result of the general election.” The Russian Embassy in London tweeted: ‘Praise God it’s not Russia this time’.

Various other ministers, including Brexit negotiator David Davis, have very publicly accused the EU of engaging in hostilities. If the general election is about Brexit, it is clearly a very British kind of Brexit. According to the prime minister, the only thing that matters is that she is returned to office with a much larger majority so that she can provide ‘strong and stable leadership in the Article 50 negotiations with the aim of securing the best possible deal for Britain. If the opinion polls and the outcome of the local elections on 5 May are anything to go by, her stance appears to be very popular.

The obvious interpretation of Mrs May’s election tactics is that she needs a large majority in the Commons to ensure the passage of her Article 50 deal in one or possibly two critical votes. The first vote, which is certain to take place, will be in autumn 2018 on a government motion to indicate approval of the draft withdrawal agreement: this will happen before the European Parliament is asked to give its formal consent to the Council decision authorising the secession treaty. The second vote, once the formal treaty has been tabled before Parliament, would be on a negative motion from the opposition. It will take place only if there is at the time a sufficient number of MPs who seek, for reasons of their own, to veto the Brexit deal. Those reasons would stretch from ardent pro-European MPs wanting to remain in the EU on any terms to those of radical anti-Europeans wanting to leave the EU at all costs without a deal. That unholy alliance might be what Mrs May really means when she warns of a ‘coalition of chaos’ – a jibe she makes at the expense of the opposition parties.

Playing the nationalist card

Yet playing the nationalist card in an election campaign has attendant dangers, at home and abroad. Theresa May’s posturing in the best Maggie Thatcher style may well be taken at face value by her new crop of MPs. By mounting the ramparts of British national sovereignty, the prime minister is limiting her future room for manoeuvre if, for example, she wishes in a government ministerial reshuffle after the election to sack Boris Johnson or David Davis or, indeed, any one or all of her several less-than-competent Brexiteer ministers. Moreover, her tough rhetoric against the interfering foreigner will be difficult for the interfering foreigner to forget once the real Article 50 negotiations begin in mid-June immediately after the election. Hapless British officials will have to bear the brunt of the suspicion and hostility that is now rising in Brussels against the UK. Few reckon that Mr Davis’s well-known bluff and bluster will in any event survive his first serious contact with the enemy: if he is sent by his prime minister into battle to the beat of the UKIP drum, he will be unable to avoid a very public defeat and a collapse of the talks.

Flaying the opposition

Faced with Theresa May rampant, the opposition parties are struggling to articulate a clear, coherent alternative approach to Brexit. Both Labour and the Liberal Democrats seem conflicted between, on the one hand, their perceived need to ‘respect’ the outcome of last June’s referendum and, on the other, their electoral tactic of campaigning for a ‘soft’ Brexit against what they portray as Mrs May’s presumed ‘hard’ version. The opposition parties have to try to appeal to their pro-Remain supporters without completely alienating their Leavers; the Conservatives have to do the converse. But it is the invidious plight of her opponents that will see Mrs May returned to No 10 on 9 June.

Labour’s manifesto says that it would, if in government, accept the result of the referendum. It rejects Mrs May’s ‘no deal’ scenario. Instead, Labour would successfully negotiate a Brexit deal that retained the benefits of the single market and customs union, as well as full membership of Euratom. It does not say how it would do this. Neither does it tell us how it would deal with EU immigration. It would join up to several EU agencies. At home, Theresa May’s Great Repeal Bill would become Jeremy Corbyn’s EU Rights and Protections Bill.

The Liberal Democrats want a second referendum on the outcome of the final Brexit deal. They will campaign against the secession package even without seeing it, presumably on the grounds that no Brexit deal is better than any Brexit deal. The Lib Dems are assuming optimistically that Britain’s erstwhile partners will welcome it back when it applies to re-join the European Union from scratch, as Article 50 says it must, under Article 49.

Even the SNP, which at one stage floated a plan (albeit unworkable) to remain in the single market while England left it, now accepts that there will be no special deal for Scotland. In Northern Ireland, the Unionist political parties, who are allies of Mrs May, are faced with the dilemma that under EU law a soft border with the Republic (which they want) means a harder border with Great Britain (which they don’t want).

None of the parties, not excluding the Conservatives, has as yet seriously addressed the question of how to define Britain’s future relationship with Europe. None gives the impression that it has even read, let alone digested the European Council’s guidelines for the Article 50 talks.[1] It is unlikely that much more light will be shed on these matters in the course of the election campaign, so the new House of Commons will assemble for the Queen’s Speech on 19 June ill-prepared for what lies in store. The decision to leave the Union will have been entrenched, and Mrs May’s presumably large majority will ensure that the vote on any secession treaty in 2018 will be carried. There is no turning back.[2]

How the British can mishandle Brexit

So the big question is: will the Article 50 negotiations work? Will there be a secession treaty to vote on at all? Or will the European Union simply pull out of the United Kingdom at midnight on 29 March 2019 causing a massive vortex?

Mishandling Article 50 is the easy bit. The British government can continue to be shambolic. It is proving to be rather prone to cack-handed diplomacy: its decision to veto EU budgetary talks whose outcome will not affect the UK during its own election purdah period made it no friends in the Council; its decision to boycott a hearing on citizens’ rights has angered MEPs. Boris Johnson could go on trying to pick off individual EU states and divide the 27. Liam Fox could invent pre-emptive trade deals with third countries, such as Turkey. David Davis could refuse to pay what Britain owes the EU. Theresa May could try to bypass the Article 50 process by seeking to negotiate a deal herself; she could ramp up the nationalist rhetoric and return to her earlier theme of ‘no deal is better than a bad deal’; even worse, she could publish a Plan B that would seduce the far right and provoke Brussels further.

Calling an early election may help Theresa May at the end of the Brexit process, but not at the beginning. In the electoral campaign imprudent British claims are continuing to be made about unpopular European opponents. There is no easier target in a British election than an unelected Brussels bureaucrat, and a French one at that. Mrs May needs to better discipline, or sack, her ministers. She should drop the pretence that the trade deal can be wrapped up within the two year timeframe dictated by Article 50. She should prepare her party and the public to ready them for a classical EU package deal – which means dropping the cliché that no deal is better than a bad deal.

How the Europeans can mishandle Brexit

The EU side can also mishandle Article 50. As the recent indiscretions of Martin Selmayr have shown, Brussels itself is not immune from cack-handed diplomacy. The greatest risk, however, is that the impressive solidarity shown so far between the EU institutions and among the 27 member states will begin to fall apart. While the guidelines agreed by the European Council on 29 April are measured and intelligible, the situation with regard to the Commission’s negotiating directives, due to be agreed by the General Affairs Council on 22 May, is more problematic.[3] Germany, in particular, seems unwilling to trust the Commission with charge of the Article 50 talks. Cherry-picking has started. The French want to talk about fish and the Germans about cars. Poland wants to impose tough conditions on the UK to protect the 0.92m Poles resident in Britain.

An inherent contradiction begins to emerge in the approach of the EU 27: on the one hand they insist that the UK post-Brexit will be treated like a third country, while on the other they seem to believe they can impose conditions on the UK similar to those imposed on Iceland, Norway or Switzerland. Those three countries, however, have signed agreements with the EU that were conceived as pre-accession instruments; they agree to abide by EU rules even though they have no say in making them; they pay into the EU budget; they have to accept EU immigrants; and they respect the ultimate jurisdiction of the European Court of Justice (ECJ). As things stand, none of those conditions, either individually or severally, are acceptable to the United Kingdom. As the Norwegians are the first to aver, Britain is not Norway.

On the vexed question of citizens’ rights, the EU becomes increasingly bossy. The EU is demanding that the UK preserves the same level of protection as afforded by EU law, and for the lifetime of those concerned, to EU citizens who are already resident in the UK or who come to reside in the UK before Brexit. Mr Barnier is being expected to negotiate legal guarantees for effective equal treatment between EU citizens and British nationals even after Brexit, including an extension of the judicial authority of the ECJ. All this might look straightforward to the EU, but it will be nigh impossible for Mrs May to accept. British officials are talking airily of extending the right of permanent residence to any EU worker who wants it, but without promising the same residency rights for their dependents or with the conditions of social welfare that currently pertain. The risk is that the two sides slip into entrenched but simplistic, incompatible positions. London and Brussels are equally guilty of talking past each other.

A similar tendency threatens to frustrate a budgetary settlement. Some EU governments are succumbing to the temptation to pile financial demands on to the UK over and beyond the reasonable sum of €60bn first identified by the Commission and the Court of Auditors. It would be more sensible to agree that the UK stays within the EU budget for both revenue and expenditure until the current multi-annual financial framework agreement closes at the end of 2020. Such a compromise would benefit existing British recipients of EU funds, not least the farmers, universities and local government; it would induce stability, simplify the bureaucracy and lower costs for everybody. The British should be willing to meet all their contractual and legacy obligations as their contribution to closing the accounts. The UK could forgo a share of EU assets in exchange for a deal on certain liabilities, such as unfunded pensions. If the total money owed by the UK to the EU is around €60bn, that is not a large sum in real terms, at 3% of GDP. Despite Mr Barnier’s insistence on there being a single bill, its payment will be spread over many years. But it seems that anything much less than a total of €60bn would mean leaving the 27 badly out of pocket – with the inevitable result that their negotiating stance will harden.

A time for dispassion

One must hope that the European side does not become obsessive over the sequencing of the talks and resists the temptation to over-elaborate the Commission’s mandate. Mr Tusk and Mr Juncker should keep a firm grip on the process, including asserting themselves over any waywardness on the part of the Maltese presidency of the General Affairs Council heaping up unreasonable demands on its ex-colonial masters. (The Estonians who take over the rotating presidency of the Council in July should be more reliable.)

To avoid the Article 50 negotiations stalling at the start, all parties need to recall that the outcome of the negotiation will be a compromise or it will not be. Both sides would do well to be dispassionate. Just as the UK will be a third country as far as the EU is concerned, so the EU bloc will end up as a third country as far as the UK is concerned. Whether we like it or not, a clean and healthy detachment of the UK from the EU is a better basis for building good future relations across the Channel than a botched withdrawal followed by years of costly litigation and bitter political recrimination.

Theresa May’s first meeting of the European Council after the election will be on 22 June. Her speech to fellow heads of government needs to be a good one and emollient. Having won a significant electoral victory, she could confidently drop the distasteful nationalistic tone of her election campaign. She must make it clear that, while she resists colonial status for post-Brexit Britain, she is willing to develop efficient institutional arrangements on a joint basis to manage the future relationship. She might emphasise that, although determined to free the UK from the direct jurisdiction of the European Court of Justice, she understands the need to continue to respect the jurisprudence of the EU Court in matters germane to trade, data protection and citizens’ rights. She could offer to fulfil all Britain’s budgetary commitments (but not a penny more).

The prime minister should press for an early conclusion of the first phase of the talks on the self-evident grounds that trust between the two sides will only surface once the framework for Britain’s future relationship with the EU is defined. A quick passage to the second phase is also in the EU’s interest. Mr Barnier will soon discover that it is impossible to tie the British down to a single financial settlement without agreeing on the nature of its association post-Brexit. Continued British participation in the EU’s science and innovation programmes, for example, which everyone wants, will require the UK to make significant pledges of down-payments that will affect beneficially the negotiation by the EU 27 of its new medium-term financial planning for 2021 onwards. Similarly, it is highly unlikely that there can be an agreement on how to deal with the Ulster border issues outwith the context of a new deeply political and inevitably delicate Anglo-Irish settlement.

According to the EU’s self-imposed guidelines, the decision to move forward to phase two of the Article 50 process will be taken by the European Council when it judges that significant progress has been made on the first phase items of citizens, money and Ireland. ‘Significant’ here may mean substantial but it cannot mean final. The European Council will need to grant itself some latitude as it approaches that critical decision, hopefully as early as its meeting on 19-20 October.

Only once phase two is triggered will Mrs May be able to turn her earlier words about a ‘deep and special partnership’ into a serious proposal, and only then will the EU side be able to commit itself to designing the wherewithal for a decent, common-sense transition period, managed by a novel authoritative joint EU-UK body.

As an early mark of her good intentions, the prime minister should see to the appointment in the new House of Commons of an EU scrutiny committee in which a majority of MPs are not, in John Major’s eloquent phrase, ‘bastards’. And if there are to be more dinner parties at No 10, she should choose the guest list with more care.

Andrew Duff is a visiting
fellow at the European Policy Centre in Brussels. He was formerly a
Liberal Democrat MEP, president of the Union of European Federalists,
and director of the Federal Trust

[2] Recent polling by YouGov suggests that the bloc of 48% who voted Remain in June 2016 is no more. ‘The number who want Brexit stopped or radically softened is only 25%’. George Eaton in New Statesman, 9 May 2017.

Comments

Michael Romberg

19 May 2017 23:09

In your section "Flaying the Opposition" you are surely mistaken that the Liberal Democrats expect to apply to rejoin under Article 49. What Article 50(5) says is "If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49." I suggest that the Liberal Democrats envisage withdrawing the Article 50 notification, so that the UK does not leave the EU. Lawyers disagree on whether that is possible, but the weight of opinion seems to be that it is. A case now before the Irish courts aims to obtain a reference to the ECJ to settle the point.

TEST

17 May 2017 18:28

TEST

Huw Sayer

15 May 2017 20:35

My understanding (or perhaps wishful interpretation / projection) of the Liberal Democrat position is as follows:
1) Ideally we would not be leaving the EU - if we won a majority in the GE2017 we would take that as a clear mandate to stop Article 50 - however this is highly unlikely so we accept that (under the Tories ...or Labour) we will be leaving the EU one way or another. The question now is about which way we leave - with a minimum of disruption ('soft') or a complete ('hard') break.
2) Any deal is highly likely to leave us materially worse off than remaining in the EU but we feel that a compromise to remain in the Single Market and Customs Union would be the least bad option. If TM managed to negotiate that (or something similar to EEA) we might back her - or at least abstain in a vote on the deal to express our reservations without jeopardising the only deal on the table (in the belief that no deal would be far worse).
[2a) In any vote we would not seek to make matters worse by crashing a deal in the absence of a better offer. This somewhat ties our hands but our first aim must be to minimise the damage of Brexit. Naturally we would vote against 'no deal'.]
3) We respect the result of the referendum but that doesn't mean we need to shut up and accept the consequences. Dissent is the lifeblood of democracy. If we felt the mood of the country had dramatically changed, we would call for a second referendum (although we recognise that now is not the right time and even one on the final deal may not be appropriate or practical - since it may result in our crashing out with no deal).
[3a) This is why we are treating GE2017 as effectively the second referendum - it is probably the only chance the British people will have to vote on the outcome of the negotiations before the next election in 2022 (assuming the government returns to the five-year term - although with their majority they might even seek to extend the term - "in the interests of strong and stable government").]
4) We can and will continue to point out the folly of the Brexit decision and highlight the dangers of (the increasingly likely) no deal (that too many in the Tory party appear to favour).
5) We will hold the government to account for every wrong step they take - every example of glib buffoonery and diplomatic bungling. We will challenge them on human rights, citizens' rights, environmental protection and the maintenance high business standards.
6) We will encourage them (and support TM if necessary in individual votes on the topic if she is willing to compromise) to accept the continued free movement of people and jurisdiction of the ECJ. Not simply because they are necessary to remaining in the SM and CU but because they are worthwhile in themselves.
7) We will continue to look to Europe as our partner in the long term. We are determined to maintain cordial and cooperative working relationships with Europe and to leave the door wide open to our eventual return if a future generation of voters chooses to walk through it.
8) The Liberal Democrats will remain committed to a United Kingdom in Europe even after we have left. Those who share our vision of a European future should join us now and work for long term success - even if that means some years in the wilderness.
9) If by some miracle TM negotiates a deal that is better than the EU deal we have now, we will of course support it. If she decides to revoke Article 50 we will support her in that too.
@HuwSayer

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